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Price Of Life

By Praful Bidwai

26 July, 2004
The Hindustan Times

Rs. 15,000 to compensate you for a grievous injury that scars your lungs or kidneys for life or even affects your immune system? Well, that's what 95 percent of the victims of the world's worst-ever industrial accident received-after 10 to 15 years of lost income and aggravated health damage.

Just Rs. 1 lakh for each family of those who died from exposure to toxic gases from the Bhopal pesticides plant? That's the self-degrading, disgracefully low, value this society put on human life. In Bhopal, thousands of lives were lost-not like in some natural calamity, but even more gruesomely, for entirely man-made reasons. At work was the criminal failure of a powerful
corporation presiding over a toxic empire to exercise due care in the design and operation of a plant using, storing and producing extremely hazardous materials such as the war-gas phosgene and super-lethal methyl isocyanate.

Leave alone aircrashes, even the families of those die in railway accidents receive three to five times more compensation for a relative's death. The iniquity is all more glaring because the malfeasance and hence the culpability involved in a toxic-chemical accident is far greater than in a rail mishap: the onus to protect the public is fully on the owner-producer, who alone is aware of the hazard.

This sound logic was overturned in the delivery of compensation following the collusive 1989 out-of-court settlement between our government and Union Carbide Corporation of the US. By tacitly accepting a grotesquely paltry compensation for a mass-scale disaster, Indian society diminished itself.

Now, society has decided more or less to double the compensation by distributing what remains of the original $470 million deposited by Carbide. That's the meaning of Monday's judgment. It's purely fortuitous that what remains has risen in value to the seemingly high figure of Rs. 1,500 crores-largely because of the three-fold devaluation of the rupee vis-à-vis the dollar
over 15 years!

The additional Rs. 1 lakh that some families receive might make a minor difference to their lives. But that won't be true of the 1.2 lakh-plus people who suffered moderate to severe damage, much of it persistent and irreversible, who still need treatment. They will receive only Rs. 25,000 in final compensation. The sum is so paltry, so measly, and it comes so late, that it doesn't remotely approach the elementary requirements of justice.

The latest Supreme Court judgment is, on the one hand, a searing indictment of our justice delivery and political systems. On the other, it does little to rectify their flaws. It acknowledges that the magnitude of destruction in Bhopal was far worse than first thought. The Supreme Court itself underestimated it by a factor of five in 1989. The original assumption was that the death-toll would be "only" 3,000. By the government's own records, it reached 15,310 last October. And we are still counting! This is an implicit admission that justice still eludes the people of Bhopal, who were killed, maimed and scarred for no fault of theirs.

Three aspects of the Bhopal case are noteworthy. First, despite pretensions to Great Power status, India has confirmed itself as a Third World society mired in Fourth World social values and legal systems, whose rulers are incapable of resisting hegemonic First World interests.

The $470 million represents one of the world's cheapest, if not the paltriest, settlements of toxics-exposure suits involving massive damage. It barely equals double the amount of Carbide's insurance cover! Had such an accident occurred in the West, UCC would have been immediately bankrupted. As would be its directors, who besides would serve long prison sentences, far harsher than, say, Enron's Kenneth Lay is likely to suffer.

The Indian government has even failed to serve an arrest warrant on Warren Anderson, first issued in 1992. It claims-ludicrously-that it can't trace him, although his address was widely published by Greenpeace!

Second, institution after institution let down the Bhopalis. The Centre took over their litigation and made a mess of it. The American courts accepted Carbide's plea of forum non-conveniens. India's courts couldn't handle the case based on the law of torts because we didn't for all practical purposes have such a law (and failed to develop it).

The Supreme Court itself let the victims down by approving the settlement in return for extinguishing Carbide's civil as well as criminal liability. The corporation responsible for the plant's gravely flawed design and operating procedures, which controlled its 51 percent Indian subsidiary to the finest detail, secured an easy release. It merely accepted "moral responsibility" (read, nothing)! It's only in 1991, thanks to the victims' sustained agitation and public pressure, that criminal liability was restored. But the government --which alone can prosecute crimes--has failed to pursue charges.

Take the issue of the victims' relief and rehabilitation. The Madhya Pradesh government was put in charge of this despite its appalling callousness, incompetence and corruption. The Indian Council of Medical Research failed to suggest a rational line of treatment. Bhopal's elite has been hostile to the victims. BJP ministers Uma Bharati and Babulal Gaur still demand the compensation should be shared with the well-off unaffected wards!

Third, we have learnt few lessons from Bhopal. India is still grossly under-regulated for toxic hazards, with few procedures for environmental clearance, warning, evacuation, emergency relief and long-term rehabilitation. There is no recognition of the chemical, long-term nature of damage from industrial poisons. As for the absence of tort law in respect of mass disasters or large-consequence mishaps, the less said the better.

It's as if all the case-law developed in the Thalidomide, Agent Orange and Dalkon Shield trials, or tobacco-related compensation, had never touched our courts. Nor have we learnt much from the Uphaar tragedy, the Oleum leak, the
Chasnala disaster, the Kumbakonam fire.

These failures further compound the injustice, insult and ignominy heaped upon Bhopal. If despite this, the victims have achieved something, it's not because of the courts or governments, not because "the system" works, but because of their own heroic effort. Their struggle for justice has been arduous, dauntingly uphill. But it is epochally valiant. Their strong
collective experience has helped them recover their human dignity and rise above victimhood.

Right since December 1984, I have personally witnessed how broken widows, children who were forced to become heads of their families at age 9, and half-crippled day-labourers, all turned nto strong individuals, great activists, skilful campaigners and capable organisers. This self-empowerment through collective struggle is the Bhopal victims' single greatest achievement.

There is a larger significance to the struggle. It has kept our collective social conscience alive by ensuring that the story of corporate criminality which causes grievous suffering to innocent people wouldn't be obliterated. It has again and again reminded the world that it didn't do real justice to the powerless and underprivileged victims; that there must no more Bhopals.

The victims' spirit has proved indomitable. Their struggle hasn't ended. Indeed, part of the legal battle has shifted to the US courts which accept that the 1989 settlement doesn't cover environmental damage. The victims' moral commitment and perseverance will continue to inspire millions across the world-and remind us of how far we still have to go to create a safer
world where thuggish corporations addicted to super-profits cannot rule unfettered. The Bhopal example will energise many struggles against tyranny.